KLS Daily Take is a discussion forum on ideas about law and its relationship to society, global change, finance and legal reform, fraud, loss, recovery, and other related topics.

Thursday, December 10, 2009

A Wink and a Nod, Ethics a Year After the Confession

This has been the year of appearing to do justice. But, the issues remain, the questions left unanswered. A man named Madoff, ending not so differently from the way he began -- a self-interested insecure youngster who wanted to make money and would do whatever it took, ended up knowing he had to bring about his own demise so he could retain a status claimable by an exaggerated infamy.

All it took was cheating and lying to all who would listen. Once the money was made, they not only listened, they sold their trust and with it their ethics and their ideals. A wink and a nod, and it was understood that if you had the golden contact you would easily make a good, if not great rate of return. This was the case for the inside club. Those who are not seen as innocent investors: Shapiro, Chais, Pikower and others in the U.S. and abroad. There is a second tier who made handsome returns but not quite as much as the hundreds and thousands of percent these insiders 'earned' by feeding the braincenter.

Ponzis are an affinity fraud. 'Affinity' is a natural attraction, liking or close feeling of kinship according to the Merriam-Webster. But 'affinity' also fits neatly into the narratives and the oppressive grand narratives of culture of which Lyotard speaks. Criminality or greed can find that level of trust, or natural bonding that comes from the sharing of a human impulse grown strong by the making and hording of money. It is the same story of money-making told over and over by not just the Madoffs and their cronies but by the grander ones within the capitalist ideal: those who smuggled liquor during prohibition, discovered oil, and even discovered 'new lands.' Whereas financial and natural tsunamis do not discriminate, hitting all pro rata, capitalist affinity or 'cronyism' is only for the 'select few,' who will not tell on you, even when that number grows to thousands.

Significantly, Madoff was a mere symptom of the times: times that unveiled the Petters, Stanford, and hundreds of others crawling out of their caves of muck, reduced by the shame of loss (for the greedy, can there be a greater shame?). We can ask now if this ebbing of the tide has extinguished 'their kind.' Have there been enough jail sentences some ask? Has regulatory reform secured the perimeter? Will the 150 years received by Madoff deter others? Will this gunning down of scams, and financial giants lead to a return to the good? Has justice been done or is it at least on the right track?

I don't think so. I still see all around me the signs of aggressive as opposed to conservative action by financial institutions. Some are in trouble and thereby distracted for a little while. But those who have power, have redoubled efforts to self-gain on the backs of consumers and investors who continue to pay in their stead. Bail outs and support of mismanagement could not have helped. These actions may have simply prolonged the pain for all of us. Madoff in the end, like Martha Stewart may merely be a visible celebrity sacrifice for others to stay in the business of greed.

I had occasion to speak with an EU Central Banking leader on my travels who claimed the industry is not interested in reform. He claimed it is instead in denial. This I found hard to believe. Surely, an unprecedented downturn and exposure of the absurd risk profile of financial institutions globally must have taught them a lesson? Surely those with power and money realize the gross consequences of their breach on billions of people relying on their wisdom? Has the discrepancy between wisdom and those with money and power made justice unattainable? Are money and power so conflated now that neither wisdom nor justice can pry them apart? Is power only a term denoting self-interest and self-aggrandisement? In other words, is there no one around to hear the plea of those without millions to their name, in losses or gains: the ordinary, or not so ordinary whose cares may carry them to interests other than the commercial and the monetary?

If not, then how did it all start? What do our children learn in school? What do they learn at home? If their parents' securities' operations are investigated by the SEC and then shut down, must they long for the same treatment, hoping they too will be caught and repeat the familial program? Or is it a challenge to the youngster, to make sure it does not happen to him, that he will overcome this governing agency's power and avenge his parents' shame? How many new Madoffs are growing in the inadequacy and insecurity of average students afraid to attempt the accumulation of real wisdom and the dismissal of a call to artificial wealth?

Further still, what of universities? Given the rampant commercialization of almost every aspect of endeavour, from art to dance, finance, law, politics, and even education, shouldn't every college student have to take an ethics course? How many of them will sell out their ideals? Do they not deserve some grounding in decision-making that elicits healthy skepticism and a penchant for all that is good and 'human.'

Dec. 11, 2008, I learned some incredible truths about the world I live in. I cannot claim to have been sheltered all my life. I grew up early in the middle of war, my birthplace a battlefield in more ways than one. I did not come into the world thinking all was rosy. Every bit of poetry spoken from my lips and brushstroke of wisdom penned by my hands have been deliberate acts of reclamation of what I feel I was not allowed to have or experience. Transforming the world around me has been the only song worth singing.

However, the reality of survival digs deep into the sides of one's lungs and we breathe it in even as we take a walk up the mountain of green pines and maples, smelling the alleged scent of purity. Never having sensed the invasive stab at our ribs, we have been polluted by the fiction unknowingly. This alien sensibility we have attempted to overcome all our lives in a quest for transcendance not to the other, but to ourselves, our real selves in a place with no worry, no fear, no torture, no grief, brings us back and we cough it up and out. Deceit, fraud, hurt and tragedy compose that pollution and the fiction of the system in which it breeds.

In its place, don't we all deserve to experience the transcendent self? Isn't that what we learned in the second world war. What was the point of the Universal Declaration of Human Rights? There are no vermin among us. We have together created this world, the financial system and its various incarnations, the constitutional systems (we see evidence in California as it looks inward to its own 'Madisons' and amends its constitution 500 times), the economic systems, the social systems, and the start of it all, the family. We have killed millions of our own in one genocide after another, trying to get something right, or maybe trying to get something terribly wrong. And it is painful to acknowledge this for some of us who choose to see the horror.

I wonder when we will overcome ourselves and choose instead to help rather than hurt, to share rather than take, to learn rather than obliterate. In this age when barriers have been broken by the internet and mobility, I am reminded of the concept of sovereignty and territoriality, a projection of individual need that attempts to respect the other, and I wonder even as we yearn to communicate and hold humanity in our arms, do we not desperately need such respect individually and globally? The community we seek and create informally and formally helps us to better understand ourselves, but it also helps us hurt each other. It is a double-edged sword and with it law must in parallel be double-edged.

There must be ways to infiltrate the speed of innovation and activity of hurt we as humans are able to cause and create, with boundaries (individual, national, and along the spectrum in between) through the teaching of law and ethics at levels and in ways we have yet to conceive. Or where conceived, then in ways yet to be enforced. There is probably no better time to insert the random and the diverse, even taking the risk of welcoming the peripheral good.

If we take Dec. 11, 2008 as a day to mark our own support of a system of corruption and greed flagrantly thrown in our faces by those who have to confess it for us to know what we have done, then perhaps today, a year later, we can stand up and say we see what we have done, and we will do our best to change it!

1 comment:

GDK, i could not have put it better, the denial is rampant and the epidemic is clear we continue to experience our authorities abusing its discretion and denying its existence, i believe hold accountable at a higher standard is again an appearance on the books but hardly used, i would like to see just accountability.Cesar Lebelsee :http://www.judicialaccountability.org/individualcases-chester.htm